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On January 18, 2011, President Obama issued Executive Order 13563, reaffirming the framework for White House review of rules that was established by Executive Order 12866 and requiring agencies to develop plans to conduct a retrospective review of their existing rules.

Section 2 of the Order, entitled “Public Participation,” directs agencies to promote an “open exchange of information and perspectives” among all stakeholders during the regulatory process, and to provide the public with a “meaningful opportunity” to comment on proposed rules. Specifically, the Order directs agencies to provide the public with a “timely” opportunity to comment on proposed and final rules, and to make electronic rulemaking dockets, including the scientific and technical findings relevant to a proposed or final rule, available and searchableonline. The Order also instructs agencies to “seek the views of those likely to be affected” by a proposed rule, including likely beneficiaries and those who would be subject to a rule. Notably, the Order directs agencies to do so before issuing a notice of proposed rulemaking.

In other words, Executive Order 13563 promotes increased public participation throughout all stages of the rulemaking process. Agencies will not satisfy the Order simply by allowing interested parties to comment on the text of a proposed or final agency rule after it is published in the Federal Register. Instead, it prescribes transparency—searchable, onlineaccess — to the docket underlying the proposed or final rule on Regulations.gov. Such access will foster meaningful participation during the development stage of proposed rules, not merely in response to propose rules. Full agency implementation of the Order over the next year and beyond will increase significantly the opportunities for public participation in the rulemaking process.

Section 4 of the Order directs agencies

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[w]here relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law [to] identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

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The relevance of rulemaking continues even after the publication of a final rule. Section 6 of Order accordingly directs agencies to develop plans to "periodically review . . . existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives."

Many agencies have sought public comments on their preliminary plans for retrospective review. They have been encouraged to publish their preliminary plans online on their Open Governmentwebsites, and to do so “in an open format that enables the public to download, analyze, and visualize any information and data.”[1]